PICHLER v. UNITE
585 F.3d 741 (2009)
Elizabeth PICHLER; Kathleen Kelly; Russell Christian; Deborah Brown; Seth Nye; Holly Marston; Kevin Quinn; Jose L. Sabastro; Deborah A. Sabastro; Thomas Riley; Amy Riley; Russell Daubert; Carri Daubert,
v.
UNITE (Union of Needletrades, Industrial and Textile Employees, AFL-CIO), a New York Unincorporated Association; Bruce Raynor, a New York Resident; International Brotherhood Teamsters, Does 1-10
National Right to Work Legal Defense Foundation Inc., Intervenor in D.C./Appellant.
No. 08-2354.
United States Court of Appeals, Third Circuit.
Argued: February 2, 2009.
Opinion filed: November 13, 2009.
William L. Messenger, Esq., (Argued), William J. Young, Esq., National Right to Work Legal Defense Foundation, Springfield, VA, Attorney for Intervenor in D.C.-Appellant.
Lawrence T. Hoyle, Esq., (Argued), Arlene Fickler, Esq., Hoyle, Fickler, Herschel & Mathes, Philadelphia, PA, Attorneys for UNITE-Appellee.
Before: McKEE and STAPLETON, Circuit Judges and IRENAS,* Senior District Judge.
OPINIONMcKEE, Circuit Judge.
The National Right to Work Legal Defense Foundation ("NRTW") appeals the district court's order denying its motion to modify a protective order that restricts access to certain records. For the reasons that follow, we will affirm.
I. Factual Background.In the fall of 2002, the Union of Needletrades, Industrial & Textile Employees AFL-CIO ("UNITE")1 decided to launch a union organizing campaign targeting CINTAS Corporation, the largest domestic employer in the industrial laundry industry. CINTAS employs approximately 28,000 people at 350 locations in the United States and Canada. Many of those employees are female, Black, or Hispanic. UNITE initiated that campaign because it believed that CINTAS was paying low wages, offering poor benefits, and subjecting its employees to unsafe working conditions, discriminatory practices, and violations of various labor laws.2 "CINTAS... is philosophically opposed to unions and union organizing." Pichler v. UNITE,542 F.3d 380, 383 (3d Cir.2008). UNITE therefore believed that its organizing efforts would not be successful unless representatives of the union visited employees' homes because employees would not speak freely on the job where they could be observed by management and exposed to coercion and/or retaliation. In order to contact CINTAS employees in their homes, UNITE compiled lists of names and addresses of presumed CINTAS workers from a variety of sources. The sources included license plate numbers of cars parked in CINTAS parking lots. The license plate numbers were used to obtain names and addresses of the registered owners of the respective cars from databases containing state motor vehicle records, a technique known as "tagging."
* The Honorable Joseph Irenas, Senior District Judge of the United States District Court for the District of New Jersey, sitting by designation.
1. In July of 2004, UNITE merged with the Hotel Employees and Restaurant Employees International Union ("HERE") and the combined entity became known as "UNITE HERE." We will refer to the union simply as "UNITE."
2. The International Brotherhood of Teamsters AFL-CIO represented some of UNITE's employees, and UNITE and the Teamsters therefore agreed to work together to organize CINTAS employees. The Teamsters are not involved in this appeal.
3. The group includes CINTAS employees, as well as spouses and friends of employees, whose cars were driven to work by employees.
4. A "`Protective Order' properly denotes court orders over information exchanged during discovery." Pansy v. Borough of Stroudsburg,23 F.3d 772, 777 n. 1 (3d Cir.1994) (citing Fed.R.Civ.P. 26(c)). 5. The right of access to judicial proceedings and judicial records is beyond dispute. Pansy v. Borough of Stroudsburg,23 F.3d 772 (3d Cir.1994) (citations omitted). However, because the documents the NRTW seeks have never been filed with the district court, they are not judicial records, and, therefore, the NRTW cannot obtain access to them under the right of access doctrine. Id. at 780-83. The NRTW does not dispute that it cannot obtain the documents under the right of access doctrine. 6. We have jurisdiction under the collateral order doctrine to review the denial of the motion to modify the Protective Order and the denial of the motion to reconsider. See Shingara v. Skiles,420 F.3d 301, 304-05 (3d Cir.2005). Our review is for abuse of discretion, but we exercise plenary review over the district court's interpretation and application of the legal standard for granting or modifying a confidentiality order. Id. at 305 (citation omitted). 7. "From 2002 through October 13, 2004, UNITE brought or assisted in bringing against CINTAS, six federal cases, three state court cases, eighteen charges with the Equal Employment Opportunity Commission (`EEOC'), and four charges with the Occupational Safety and Health Administration (`OSHA')." Pichler III, 446 F.Supp.2d at 363 (footnotes omitted). "UNITE also filed unfair labor practice charges with various offices of the National Labor Relations Board (`NLRB'), some of which were settled without any admission of liability." Id. "In addition ..., UNITE ... filed a charge with the Ohio Civil Rights Commission, and the California Department of Fair Employment and Housing." Id.
8. Standing is a jurisdictional requirement under Article III. See Soc'y Hill Towers Owners' Ass'n v. Rendell,210 F.3d 168, 175 (3d Cir. 2000). In Steel Co. v. Citizens for a Better Environment,523 U.S. 83, 93-102, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998), the Supreme Court held that a federal court may generally not rule on the merits of a case without first determining jurisdictional issues. 9. A confidentiality order "denote[s] any court order which in any way restricts access to or disclosure of any form of information or proceeding, including but not limited to `protective orders,' `sealing orders' and `secrecy orders.'" Pansy, 23 F.3d at 777 n. 1.
10. No party involved in the appeal addressed the issue of FOCUS's standing.
11. In addition, the challenges in FOCUS and Wecht were premised on violations of First Amendment rights. FOCUS alleged that the gag order violated its First Amendment rights, and the media outlets in Wecht asserted First Amendment claims on behalf of the public. Obviously, the NRTW cannot make a First Amendment challenge to the protective order here.